Tohono O'Odham Nation v. United States

United States Court of Appeals for the Federal Circuit
2008-5043

TOHONO O’ODHAM NATION,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Mark I. Levy, Kilpatrick Stockton, LLP, of Washington, DC, argued for plaintiff-
appellant. With him on the brief were, Keith M. Harper, G. William Austin, III, Catherine F.
Munson, and Raymond M. Bennett, of Raleigh, North Carolina.

Sambhav N. Sankar, Attorney, Evironmental & Natural Resources Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee. On the
brief were Ronald J. Tenpas, Assistant Attorney General, and Aaron P. Avila, Attorney.

Appealed from: United States Court of Federal Claims

Senior Judge Eric G. Bruggink
 United States Court of Appeals for the Federal Circuit
2008-5043

TOHONO O’ODHAM NATION,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 06-CV-944, Senior Judge Eric
G. Bruggink.
__________________________

DECIDED: March 16, 2009
__________________________

Before NEWMAN, LINN, and MOORE, Circuit Judges.

Opinion for the court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit
Judge MOORE.

LINN, Circuit Judge.

This case concerns the application of 28 U.S.C. § 1500, the statute that divests

the United States Court of Federal Claims of jurisdiction over “any claim for or in respect

to which the plaintiff or his assignee has pending in any other court any suit or process

against the United States.” Applying § 1500, the Court of Federal Claims dismissed an

action brought by the Tohono O’odham Nation (the “Nation”) alleging that the United

States breached certain fiduciary duties as trustee of funds and property owned by the

Nation. Tohono O’odham Nation v. United States, 79 Fed. Cl. 645, 646 (2007).

Because we conclude that the Nation’s complaint in the Court of Federal Claims seeks
relief that is different from the relief sought in its earlier-filed district court action, we

reverse.

I. BACKGROUND

The Nation is a federally recognized Indian tribe of approximately 26,000

members, located in Arizona. Tohono O’odham Nation, 79 Fed. Cl. at 646.

Collectively, the Nation’s reservations consist of nearly three million acres of land. Id.

The United States manages the Nation’s land and holds income derived from that land

in trust, including income from the sale of natural resources and income from leases

and other conveyances to third parties. Id. Additionally, the United States holds in trust

money awarded to the Nation as a result of legal judgments, including $26 million that

the United States paid to the Nation to settle a takings and trespass action in 1976. Id.

On December 28, 2006, the Nation brought an action in the United States District

Court for the District of Columbia against the Secretary of the Interior, the Special

Trustee for American Indians, and the Secretary of the Treasury, alleging that the

United States had breached certain fiduciary duties in connection with its management

of the Nation’s trust assets. See Tohono O’odham Nation v. Kempthorne, No. 1:06-CV-

02236, Doc. 1, at 1 (D.D.C Dec. 28, 2006) (“District Court Complaint”). Specifically, the

Nation presented in two counts “an action to seek redress of breaches of trust by the

United States, acting by and through the defendants, in the management and

accounting of trust assets, including funds and lands, belonging to the plaintiff . . . and

to compel the defendants to provide a full and complete accounting of all trust assets

belonging to the Nation and to correct the balances of the Nation’s trust fund accounts

to reflect accurate balances.” Id. at 1-2. The Nation’s prayer for relief requested nine

remedies:

2008-5043 2
 1. For a decree construing the trust obligations of the
defendants to the Nation, including, but not limited to, the duty to provide a
complete, accurate, and adequate accounting of all trust assets belonging
to the Nation and held in trust by the defendants.

2. For a decree that the United States, acting through the
defendants, has been in breach of its trust obligations since the inception
of this trust and continues to be in breach of those duties today,
specifically including, inter alia, its fiduciary duty to provide a complete,
accurate, and adequate accounting of all trust assets belonging to the
Nation and held in trust by the United States.

3. For a decree that the AA Reports do not constitute the
complete, accurate, and adequate accounting that the defendants are
obligated to provide to the Nation.

4. For a decree delineating the fiduciary duties owed by the
defendants to the Nation with respect to the management and
administration of the trust assets belonging to the Nation.

5. For a decree directing the defendants (1) to provide a
complete, accurate, and adequate accounting of the Nation’s trust assets,
including, but not limited to, funds under the custody and control of the
United States and (2) to comply with all other fiduciary duties as
determined by this Court.

6. For a decree providing for the restatement of the Nation’s
trust fund account balances in conformity with this accounting, as well as
any additional equitable relief that may be appropriate (e.g., disgorgement,
equitable restitution, or an injunction directing the trustee to take action
against third parties).

7. For a decree requiring the defendants to provide to the
Nation all material information regarding the management and
administration of the trust assets belonging to the Nation and held in trust
for its benefit by the defendants.

8. For an award of the Nation’s costs of suit, including, without
limitation, attorneys’ fees under the Equal Access to Justice Act and other
statutes as well as general equitable principles, and the fees and costs of
expert assistance.

9. For such other and further relief as the Court, as a
Chancellor sitting in equity, may deem just and proper.

Id. at 18-19.

2008-5043 3
 On December 29, 2006—one day after it filed its district court complaint—the

Nation brought a second action in the Court of Federal Claims. The complaint

characterized that second action as “an action for money damages against the United

States, brought to redress gross breaches of trust by the United States . . . as trustees

and trustee-delegates of land, mineral resources and other assets held by them for the

benefit of the Tohono O’odham Nation.” Tohono O’odham Nation v. United States, No.

06-CV-944, Doc. 1, at 1, (Ct. Fed. Cl. Dec. 29, 2006) (“Court of Federal Claims

Complaint”). In its Court of Federal Claims action, the Nation asserted four counts,

entitled “Damages Resulting from the United States’ Breach of Fiduciary Duty with

Respect to the Management of the Nation’s Mineral Estate,” “Damages Arising from the

United States’ Breach of Fiduciary Duty with Respect to the Management of the

Nation’s Non-Mineral Estate,” “Damages Arising from the United States’ Breach of

Fiduciary Duty with Respect to the Management of Judgment Funds,” and “Damages

Arising from the United States’ Breach of Fiduciary Duty with Respect to Deposit and

Investment of Trust Funds.” Id. at 9-12. In its prayer for relief, the Nation asked:

1. For a determination that the Defendant is liable to the Nation
in damages for the injuries and losses caused as a result of Defendant’s
breaches of fiduciary duty;

2. For a determination of the amount of damages due the
Nation plus interest as allowed by law;

3. That the costs of this action, including reasonable attorneys
fees, be awarded to the Nation;

4. For such other and further relief as the Court deems just and
appropriate.

Id. at 13.

2008-5043 4
 The United States moved to dismiss the Nation’s action in the Court of Federal

Claims for lack of jurisdiction in light of 28 U.S.C. § 1500. Tohono O’odham Nation, 79

Fed. Cl. at 646. The Court of Federal Claims concluded that the Nation’s claim “arises

from the same operative facts and seeks the same relief as the claim in district court.”

Id. at 659. As a result, the Court of Federal Claims held that it lacked jurisdiction under

§ 1500, and it granted the United States’ motion to dismiss. Id.

The Nation timely appealed. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(3) (2006). “We review the Court of Federal Claims’s dismissal for lack of

jurisdiction de novo.” Sacco v. United States, 452 F.3d 1305, 1308 (Fed. Cir. 2006).

II. DISCUSSION

Section 1500 provides:

The United States Court of Federal Claims shall not have jurisdiction of
any claim for or in respect to which the plaintiff or his assignee has
pending in any other court any suit or process against the United States or
any person who, at the time when the cause of action alleged in such suit
or process arose, was, in respect thereto, acting or professing to act,
directly or indirectly under the authority of the United States.

28 U.S.C. § 1500 (emphasis added).

Following a series of cases in which this court interpreted the meaning of “claim”

in § 1500, see, e.g., Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir.

1988); UNR Indus., Inc. v. United States, 962 F.2d 1013 (Fed. Cir. 1992) (en banc), the

Supreme Court addressed the issue in Keene Corp. v. United States, 508 U.S. 200

(1993), aff’g UNR, 962 F.2d 1013. The Supreme Court remarked that § 1500 “requires

a comparison between the claims raised in the Court of Federal Claims and in the other

lawsuit.” Keene, 508 U.S. at 210. The Supreme Court also recognized, however, that

2008-5043 5
§ 1500 does not define the critical term “claim” and that “[t]he exact nature of the things

to be compared is not illuminated . . . by the awkward formulation of § 1500.” Id.

In Keene, the Supreme Court held that “the comparison of the two cases for

purposes of possible dismissal would turn on whether the plaintiff’s other suit was based

on substantially the same operative facts as the Court of Claims action, at least if there

was some overlap in the relief requested.” Id. at 212. The Supreme Court expressly

left open “whether two actions based on the same operative facts, but seeking

completely different relief, would implicate § 1500.” Id. at 213 n.6.

The dissent treats the Supreme Court’s analysis in Keene as the final word on

the matter. See Dissenting Op. at 1, 3-7. However, shortly after Keene, this court,

sitting en banc, interpreted and applied the Keene opinion and expressly addressed the

question that Keene left open. In Loveladies Harbor, Inc. v. United States, after

reviewing this court’s earlier tests for the same claim in § 1500 cases in light of the

Supreme Court’s holding in Keene, we held:

Taken together, these tests produce a working definition of “claims” for the
purpose of applying § 1500. For the Court of Federal Claims to be
precluded from hearing a claim under § 1500, the claim pending in
another court must arise from the same operative facts, and must seek
the same relief.

27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc).

It is the Loveladies court’s interpretation of Keene that is binding on this panel.

See, e.g., Barclay v. United States, 443 F.3d 1368, 1373 (Fed. Cir. 2006) (“Panels of

this court are bound by previous precedential decisions until overturned by the Supreme

Court or by this court en banc.”); Foster v. Hallco Mfg. Co., 947 F.2d 469, 475 n.5 (Fed.

Cir. 1991) (remarking that district court committed legal error by reinterpreting an earlier

Supreme Court case, rather than applying this court’s subsequent interpretation of that

2008-5043 6
case); see also Walton v. Bisco Indus., Inc., 119 F.3d 368, 371 n.4 (5th Cir. 1997) (“To

the extent that [the appellant] believes that we have construed [an earlier Supreme

Court decision] incorrectly, we note that absent an intervening Supreme Court decision

or a decision by this court sitting en banc, we are bound by a prior panel’s

interpretation.”); Tucker v. Phyfer, 819 F.2d 1030, 1035 n.7 (11th Cir. 1987) (“[H]ad the

[earlier] panel expressly considered [two Supreme Court decisions], we would be bound

by its interpretation and application of those decisions.”); Diamond Shamrock Co. v.

N.L.R.B., 443 F.2d 52, 60 n.27 (3d Cir. 1971) (holding that court is bound by prior

panel’s interpretation of Supreme Court decision); cf. United States v. Rapanos, 376

F.3d 629, 642 (6th Cir. 2004), vacated on other grounds, 547 U.S. 715 (2006) (rejecting

appellee’s argument concerning interpretation of a Supreme Court decision because it

had “previously been adjudicated by this court, in a published disposition, and its

conclusion is entitled to stare decisis”). The dissent errs by interpreting and applying

Keene de novo and ignoring the interpretation of Keene set forth in Loveladies.

Under the test set forth in Loveladies, § 1500 is applicable only if two claims

“arise from the same operative facts” and “seek the same relief.” Loveladies, 27 F.3d at

1551. Conversely, if an action in the Court of Federal Claims either arises from different

operative facts or seeks completely different relief than the earlier-filed action, then

§ 1500 does not divest the Court of Federal Claims of jurisdiction. In this case, the

“same relief” prong is dispositive. 1

1
Because we conclude that the “same relief” prong of the Loveladies test is
not met, we do not address whether the Nation’s complaints arise from the same
operative facts.

2008-5043 7
 Drawing on the “distinctly different” language in Loveladies, the United States

argues for a sweeping rule that “it is the form of the relief that matters—here, money.”

Br. of Def.-Appellee United States at 43; see also id. at 43 n.10 (arguing for “[a] rule that

it is the form of relief sought in the two courts that matters for purposes of Section

1500”). In the United States’ view, the “same relief” prong is always satisfied whenever

two complaints both seek any relief in the form of money—irrespective of any

differences in the amounts requested, the basis for the calculation of those amounts,

the alleged injuries giving rise to those amounts, or the court’s authority for awarding the

requested money (i.e., as damages, as an equitable remedy, or under some other

authority).

We disagree that the “distinctly different” language in Loveladies compels such a

sweeping rule. To the contrary, Loveladies refers interchangeably to “distinctly

different” relief and simply “different” relief. See, e.g., Loveladies, 27 F.3d at 1549

(“distinctly different relief”); id. at 1550 (“different form of relief”); id. at 1551 (“relief

distinctly different”); id. at 1552 (“distinctly different relief”); id. at 1552-53 (“different

relief”); id. at 1553 (“relief different”). We see no meaningful difference—distinct or

otherwise—between “different” and “distinctly different.” Either the relief requested in

two complaints is the same, or it is different. An award of back wages for a particular

time period under the Equal Pay Act is the same as—not “different” or “distinctly

different” from—an award of back wages for that same time period under Title VII. See

Harbuck v. United States, 378 F.3d 1324, 1329 (Fed. Cir. 2004). By contrast, injunctive

relief is “different”—or “distinctly different”—from money damages. See, e.g., Johns-

Manville, 855 F.2d at 1566. There is no requirement of any heightened showing of

2008-5043 8
“difference.” Rather, we must determine simply whether the relief that the Nation

requested in its Court of Federal Claims complaint is the same as the relief that it

requested in its district court complaint.

To answer that question, we look to each complaint’s prayer for relief. See

Loveladies, 27 F.3d at 1553 (focusing on prayers for relief). In its district court

complaint, the Nation requested relief that falls into seven categories:

(i) a declaration that the United States has certain specific trust obligations
(requests 1 and 4);

(ii) a declaration that the United States is in breach of those obligations (requests 2
and 3);

(iii) an accounting (requests 5(1) and 7);

(iv) an order directing the United States to comply with its other trust obligations
going forward (request 5(2));

(v) restatement of trust account balances in conformity with the accounting “as well
as any additional equitable relief that may be appropriate (e.g., disgorgement,
equitable restitution, or an injunction directing the trustee to take action against
third parties)” (request 6);

(vi) costs and attorneys’ fees (request 8); and

(vii) “other and further relief as the Court, as a Chancellor sitting in equity, may
deem just and proper” (request 9).

District Court Complaint, at 18-19. In essence, the Nation requested that the district

court declare that the United States was in breach of its duties as a trustee and order

specific performance of those duties. Notably, all of the requested relief is equitable

relief, not damages. See Johns-Manville, 855 F.2d at 1566 (distinguishing “money”

damages and “equitable” relief as “different type[s] of relief” for purposes of § 1500);

Loveladies, 27 F.3d at 1550 (same). The Nation, in fact, was careful to limit its request

2008-5043 9
for “other and further relief” in the district court to relief “as the Court, as a Chancellor

sitting in equity, may deem just and proper.” District Court Complaint, at 19.

By contrast, the Nation’s complaint in the Court of Federal Claims seeks

damages at law, not equitable relief. In its prayer for relief in the Court of Federal

Claims, the Nation requested only damages (requests 1 and 2), attorneys’ fees and

costs (request 3), and “such other and further relief as the Court deems just and

appropriate” (request 4). Court of Federal Claims Complaint, at 13. Moreover, the word

“Damages” appears in the title of all four of the Nation’s counts. Id. at 9-12. Nowhere in

its prayer for relief in the Court of Federal Claims does the Nation seek specific

performance, an injunction, or any other type of equitable relief.

The Nation’s careful separation of equitable relief and money damages is critical

to the § 1500 analysis in this case, just as it was in Loveladies. In concluding that the

two complaints at issue requested different relief, the court in Loveladies reasoned that

“[i]t is important to note that the prayer in the Court of Claims complaint contained an

express request for damages. Significantly, that request was missing from the

complaint in the district court.” Loveladies, 27 F.3d at 1553. Likewise, in this case, the

Nation’s complaint in the district court requests only equitable relief and not damages,

while the Nation’s complaint in the Court of Federal Claims requests only damages and

not equitable relief.

The Court of Federal Claims identified two areas of “what looks like overlapping

relief (money and an accounting in both courts).” Tohono O’odham Nation, 79 Fed. Cl.

at 656. As for “money,” the court reasoned that the Nation’s “district court complaint

specifically seeks money (disgorgement, restatement of accounts, and restitution),” and

2008-5043 10
that this request overlaps with its request for money damages in the Court of Federal

Claims. Id. at 652. As far as an accounting, the court concluded that an accounting in

aid of judgment in the Court of Federal Claims would overlap with the request for an

accounting in the district court.

We disagree. The Nation’s district court complaint requests an accounting and a

“restatement of the Nation’s trust fund account balances in conformity with this

accounting, as well as any additional equitable relief that may be appropriate” including

disgorgement or equitable restitution. District Court Complaint, at 18. In other words,

the Nation is requesting that, following the accounting, its account balances be adjusted

to reflect the correct amounts to correct any errors discovered in the accounting. The

Nation refers to this as a request for “old money”—namely, money that is already in the

government’s possession, but that erroneously does not appear in the Nation’s

accounts. In the course of making an adjustment of account balances, it may be

necessary for the court to order other “equitable relief that may be appropriate,”

including disgorgement or equitable restitution, if it is discovered that the United States

has misappropriated funds from the Nation’s trust and/or improperly profited from the

Nation’s “old money.”

This equitable relief as “appropriate” in connection with the accounting is not the

same as the “damages for the injuries and losses” that the Nation has requested in the

Court of Federal Claims. Court of Federal Claims Complaint, at 13. Notably, each of

the “injuries” that the Nation alleges in the Court of Federal Claims is an injury resulting

from the United States’ failure to properly manage the Nation’s assets to obtain the

maximum value. See id. at 9 (count 1 alleging mismanagement of mineral estate); id. at

2008-5043 11
10 (count 2 alleging mismanagement of non-mineral estate); id. at 11 (count 3 alleging

mismanagement of judgment funds); id. at 12 (count 4 alleging mismanagement in

deposit and investment of funds). The “injuries and losses” for which the Nation seeks

relief are essentially consequential damages—profits that the Nation would have made

but for the United States’ mismanagement. The Nation refers to these profits as “new

money.” Thus, the Court of Federal Claims complaint seeks damages in the form of

“new money” that the Nation should have earned as profit but did not, while the district

court complaint seeks return of “old money” that belongs to the Nation but erroneously

does not appear on its balance sheet. These are not the same types of relief.

The dissent acknowledges that it would be possible to craft two complaints to

avoid § 1500 by requesting “old money” in one, and “new money” in the other.

Dissenting Op. at 5. However, the dissent concludes that the Nation’s complaint in the

Court of Federal Claims is not limited to “new money.” Id.. Specifically, the dissent

reasons that the Court of Federal Claims complaint “alleges fiduciary breaches related

to ‘old money’” and then “broadly asks for money for breaches of the fiduciary duty.” Id.

at 5-6. But the Nation’s Court of Federal Claims complaint does not “broadly ask[] for

money” as the dissent suggests. To the contrary, the Court of Federal Claims complaint

expressly asks for damages alone—not any other form of monetary relief, and not

equitable relief of any type. See, e.g., Court of Federal Claims Complaint at 1 (entitled

“COMPLAINT FOR DAMAGES FOR BREACH OF TRUST OBLIGATIONS”); id. (“This

is an action for money damages . . . .” (emphasis added)); id. (“[The] Nation seeks

damages for Defendant’s mismanagement of the Nation’s trust property.” (emphasis

added)). Nowhere in the Court of Federal Claims complaint does the Nation make any

2008-5043 12
broad request for “money for breaches of fiduciary duty.” Moreover, the very language

that the dissent quotes from the Nation’s prayer for relief makes clear that the Nation is

requesting only consequential damages—i.e., “new money”—not restitution,

disgorgement, or other equitable “old money” relief in the Court of Federal Claims: “For

a determination that the Defendant is liable to the Nation in damages for the injuries and

losses caused as a result of Defendant’s breaches of fiduciary duty.” Court of Federal

Claims Complaint at 13 (emphases added). We therefore disagree with the dissent that

the Nation made any request for “old money” in the Court of Federal Claims.

As to the second area of “what looks like overlapping relief” identified by the

Court of Federal Claims, the Nation did not—as the Court of Federal Claims suggests—

“ask[] for . . . an accounting in both courts.” Tohono O’odham Nation, 79 Fed. Cl. at

656. As the Court of Federal Claims pointed out, it is the relief that the plaintiff requests

that is relevant under § 1500. Id. at 654 (citing Keene, 508 U.S. at 212; Frantz Equip.

Co. v. United States, 98 F. Supp. 579, 580 (Ct. Cl. 1951)). The Nation’s prayer for relief

in the Court of Federal Claims does not request an accounting. The fact that,

“assuming this action were to proceed in [the Court of Federal Claims], and plaintiff

satisfied its burdens of proof, what would ensue would amount to an accounting, albeit

in aid of judgment,” id. at 653, does not transform the Nation’s unambiguous request for

damages into a request for an accounting.

Finally, we address the United States’ argument that permitting the Nation’s

claims to go forward in the Court of Federal Claims would undermine the policy and

purpose of § 1500. The United States argues that “the policy and purpose underlying

Section 1500 is that the United States not be required to defend the same claims at the

2008-5043 13
same time in two different courts; that is exactly what the Nation seeks to do here.” Br.

of Defendant-Appellee United States at 11-12; see also Tohono O’ohdam, 79 Fed. Cl.

at 654 (noting that the “purpose of section 1500 was to force plaintiffs to elect between

the Court of Claims and another court in which to pursue its whole claim against the

government” (citing Casman v. United States, 135 Ct. Cl. 647, 654 (1956))). The

dissent similarly argues that § 1500 allows the government to avoid duplicative litigation.

Dissenting Op. at 1 n.1.

In practice, § 1500 does not actually prevent a plaintiff from filing two actions

seeking the same relief for the same claims. It merely requires that the plaintiff file its

action in the Court of Federal Claims before it files its district court complaint. This

anomalous rule is the result of a series of decisions by this court, our predecessor court,

and the Supreme Court. In Tecon Engineers, Inc. v. United States, our predecessor

court held that “the only reasonable interpretation of [§ 1500] is that it serves to deprive

[the Court of Federal Claims] of jurisdiction of any claim for or in respect to which

plaintiff has pending in any other court any suit against the United States, only when the

suit shall have been commenced in the other court before the claim was filed in [the

Court of Federal Claims].” 343 F.2d 943, 949 (Ct. Cl. 1965). Later, this court, sitting en

banc, overruled Tecon. UNR, 962 F.2d at 1022-23. The Supreme Court granted

certiorari in UNR (then re-named Keene), and held that it was “unnecessary to consider,

much less repudiate, the ‘judicially created exceptions’ to § 1500 found in Tecon

Engineers” and other cases. Keene, 508 U.S. at 216. We have since recognized that

Tecon is still good law, because the aspect of UNR that had overruled it was undone by

the Supreme Court. See, e.g., Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886

2008-5043 14
(1995) (“[T]he Supreme Court expressly declined to overturn Tecon Engineers, and this

court in Loveladies I acknowledged the continuing vitality of Tecon as an established

precedent.”); id. (“After UNR/Keene and Loveladies I, Tecon Engineers remains good

law and binding on this court.”). Therefore, in this case, had the Nation simply filed its

complaints in reverse order, § 1500 would never have even come into play.

The Supreme Court has discussed at length the post-Civil War origins of § 1500.

See, e.g., Keene, 508 U.S. at 206 (remarking that the lineage of § 1500 “runs back

more than a century” and that its original purpose was to preclude duplicative actions

seeking compensation for seized cotton by parties who had given aid to Confederate

soldiers). However, neither the Supreme Court nor this court has found any purpose

that § 1500 serves today. Because a party can simply file its Court of Federal Claims

action first and avoid § 1500 entirely, it functions as nothing more than a “jurisdictional

dance.” Loveladies, 27 F.3d at 1549. Thus, the government’s and the dissent’s

argument about the policy and purpose of the statute rings hollow and, moreover, is of

no real consequence in this appeal. As we explained in Loveladies:

Litigation can serve public interests as well as the particular interests of
the parties. The nation is served by private litigation which accomplishes
public ends, for example, by checking the power of the Government
through suits brought under the APA or under the takings clause of the
Fifth Amendment. Because this nation relies in significant degree on
litigation to control the excesses to which Government may from time to
time be prone, it would not be sound policy to force plaintiffs to forego
monetary claims in order to challenge the validity of Government action, or
to preclude challenges to the validity of Government action in order to
protect a Constitutional claim for compensation. Section 1500 was
enacted to preclude duplicate cotton claims—claims for money
damages—at a time when res judicata principles did not provide the
Government with protection against such “duplicative lawsuits.” Whatever
viability remains in § 1500, absent a clear expression of Congressional
intent we ought not extend the statute to allow the Government to

2008-5043 15
 foreclose non-duplicative suits, and to deny remedies the Constitution and
statutes otherwise provide.

Id. at 1555-56 (citations omitted).

Although our decision in this case will require the government to litigate in

multiple fora, we note that there is no risk of double recovery. The Nation’s complaint in

the Court of Federal Claims seeks only “new money” damages—relief that the Nation

has not requested in district court, and which the district court is, in any event,

powerless to award. See 5 U.S.C. § 702 (excluding district court actions seeking

“money damages” from waiver of sovereign immunity). Conversely, the Nation’s

complaint in district court seeks only separate equitable relief, which the Court of

Federal Claims is powerless to award. See, e.g., Nat’l Air Traffic Controllers Ass’n v.

United States, 160 F.3d 714, 716 (Fed. Cir. 1998) (“Although the Tucker Act has been

amended to permit the Court of Federal Claims to grant equitable relief ancillary to

claims for monetary relief over which it has jurisdiction, there is no provision giving the

Court of Federal Claims jurisdiction to grant equitable relief when it is unrelated to a

claim for monetary relief pending before the court.” (citations omitted)). Our decision

therefore will not permit the Nation to obtain double recovery.

Because the relief requested in the Nation’s district court complaint is different

from the relief requested in its Court of Federal Claims complaint, § 1500 does not

divest the Court of Federal Claims of jurisdiction. The Court of Federal Claims therefore

erred by dismissing the Nation’s action for lack of subject matter jurisdiction.

III. CONCLUSION

For the foregoing reasons, the Court of Federal Claims’s order dismissing the

Nation’s complaint is reversed. We remand for proceedings consistent with this opinion.

2008-5043 16
 REVERSED AND REMANDED

2008-5043 17
 United States Court of Appeals for the Federal Circuit

2008-5043

TOHONO O’ODHAM NATION,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 06-CV-944, Senior Judge Eric
G. Bruggink.

MOORE, Circuit Judge, dissenting.

In Keene v. United States, the Supreme Court held that § 1500 deprives the

Court of Federal Claims of jurisdiction when “plaintiff’s other suit was based on

substantially the same operative facts . . . at least if there was some overlap in the relief

requested. . . . Congress did not intend the statute to be rendered useless by a narrow

concept of identity.” 508 U.S. 200, 212-13 (1993) (emphasis added). 1 Because I

conclude that the Tohono O’Odham Nation’s (Nation) suits were based on substantially

1
Because monetary suits in excess of $10,000 must be filed in the Court of
Federal Claims, Gonzales & Gonzales Bonds & Insurance Agency, Inc. v. Department
of Homeland Security, 490 F.3d 940, 943 (Fed. Cir. 2007), but absent special
exceptions not applicable here, equitable relief must be obtained from the federal district
courts, id., many plaintiffs are required to file two separate suits to obtain all the relief to
which they are entitled. Plaintiffs must file their separate complaints with precision to
avoid seeking overlapping relief and thereby implicating § 1500. Under principles of
sovereign immunity, the government can dictate the permissible circumstances of suits
against it. Section 1500 prevents multiple simultaneous litigations against the
government. The fact that the statute’s scope was reduced by Tecon Engineers, Inc. v.
United States, 343 F.2d 943, 949 (Ct. Cl. 1965), does not mean that it no longer serves
a purpose. Moreover, it is not necessary for a court to justify a particular statute’s
purpose in order to give effect to that statute.
the same operative facts and that the two complaints included some overlap in the relief

requested, I respectfully dissent.

I.

The two complaints were based on substantially the same operative facts. The

Nation acknowledges that “[i]n each case it is the trust relationship between the United

States as trustee and the Nation as beneficiary that underlies the Nation’s claims” and

that “the Nation’s claims involve the same plaintiff, the same defendant, and perhaps

even some of the same property.” Further, as the Court of Federal Claims illustrated in

great detail, the complaints’ recitations of the facts are nearly identical. The Nation

argues that because the district court action is based on the duty of accounting and the

Court of Federal Claims action is based on the duty of good management, the facts

necessary to win its case on each cause of action are different.

The legal theories underlying the claims at issue are irrelevant in a § 1500

analysis. Johns-Manville Corp. v. United States, 855 F.2d 1556, 1564 (Fed. Cir. 1988)

(“Since the legal theory is not relevant, neither are the elements of proof necessary to

present a prima facie case under that theory.”). Although we have not set forth a full

and complete definition for the term “operative facts,” 2 it is clear that the operative facts

2
As we commented in Loveladies Harbor, Inc. v. United States 27 F.3d
1545, 1551, n.17 (Fed. Cir. 1994) (en banc):

Despite its lineage, it can be argued that there is a basic epistemological
difficulty with the notion of legally operative facts independent of a legal
theory. Insofar as a fact is “operative”—i.e., relevant to a judicially
imposed remedy—it is necessarily associated with an underlying legal
theory, that is, the cause of action. For example, without legal
underpinning, words in a contract are no different from casual
correspondence. Because it is unnecessary for our decision in this case,
we need not further refine the meaning of “operative facts.”

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are not the “elements of proof necessary” to prove the theory. See Harbuck v. United

States, 378 F.3d 1324 (Fed. Cir. 2004). In Harbuck, the district court complaint alleged

sex discrimination in the plaintiff’s employment with the Air Force and the Court of

Federal Claims complaint alleged a violation of the Equal Pay Act. We held that the

operative facts were the same in both complaints and characterized them as follows:

“the Air Force’s alleged sexual discrimination by payment of lesser compensation to

women than to men for the same or substantially equal work.” Id. at 1328. To be sure,

different facts are needed to prove a claim under Title VII (failing to promote) and a

claim under the Equal Pay Act (paying less). Nevertheless, we held that “[t]he

difference between the two theories upon which she relies are but different

manifestations of the same underlying claim that the Air Force discriminated against

women by paying them less than men.” Id. at 1329. Similarly, although the Nation puts

forth two different legal theories, the operative facts underlying these theories are

“substantially the same.” Keene, 508 U.S. at 212. The majority does not hold

otherwise.

2008-5043 3
 II.

The two complaints included “some overlap in the relief requested.” 3 Keene, 508

U.S. at 212. In both courts, the Nation is asking for monetary compensation for the

government’s alleged failures to fulfill its duties. 4 The Nation admits this, but argues

that it is seeking different money in each court: “old money” from the district court and

“new money” from the Court of Federal Claims. The “old money,” the Nation argues,

would effect a “restatement of the Nation’s trust fund account balances in conformity

with [the] accounting.” Appellant Br. at 50. The “old money” is therefore the result of a

breach in fiduciary duty related to the actual transactions that took place—errors that

would be revealed by an accounting. The “new money,” in contrast, is “to compensate it

for the pecuniary losses it suffered as a result of the government’s imprudent

management and investment actions.” Appellant Reply Br. at 21; Appellant Br. at 51-52

3
I do not understand the majority’s assertion that Loveladies is an
“interpretation” of the standard set forth in Keene. Keene held that § 1500 deprives the
Court of Federal Claims of jurisdiction when “plaintiff’s other suit was based on
substantially the same operative facts . . . at least if there was some overlap in the relief
requested.” 508 U.S. at 212. Loveladies held that “the claims in the two courts are for
distinctly different and not the same or even overlapping relief—this case presents the
straightforward issue of plaintiffs who seek distinctly different types of relief in the two
courts.” 27 F.3d at 1554. Ultimately, the majority and I both analyze the complaints to
see if there is some overlap in the relief requested, and it is on this point that we
disagree.
4
The government also argues that the Nation’s request for damages in the
Court of Federal Claims would require an accounting in aid of judgment. According to
the government, this accounting would overlap with the general accounting that the
Nation requested in the district court. Because I believe that the Nation has requested
overlapping monetary relief in the two complaints, I do not express an opinion on
whether it requested overlapping equitable relief. Because the majority held that there
is no overlapping relief at all between the two complaints, it must have concluded that
for the purposes of § 1500, an accounting in aid of judgment for monetary damages
arising from a duty to manage funds does not overlap with a general equitable
accounting arising from a duty to provide an adequate accounting.

2008-5043 4
(explaining that the Nation seeks “pecuniary losses suffered as a result of the

government’s failure prudently to manage and invest trust assets”).

It seems plausible that carefully drafted complaints could distinguish particular

pots of money as different relief, but these complaints nowhere discuss this concept.

For purposes of § 1500, we look at the relief requested in the complaint. Keene, 508

U.S. at 212; Dico v. United States, 48 F.3d 1199, 1203 (Fed. Cir. 1995). In Dico, the

plaintiff attempted to overcome the plain language of its two complaints and distinguish

a takings claim and a due process claim by arguing that they related to different

property interests. We disagreed, holding that it was “too late for Dico to attempt at this

stage to recast . . . the relief sought by” the two counts. Id. Rather, “the plain language”

of the complaint controls the outcome. Id. Here, the plain language of the complaints

repudiates the Nation’s argument.

The complaint in the Court of Federal Claims is not limited to “new money” as the

Nation argues now. The complaint clearly alleges fiduciary breaches related to “old

money:”

• Count 1 states: “The United States, as trustee, has never provided the
Nation a complete and accurate accounting of the revenue the United
States collected or was required to collect under mineral leases and
permits. Nor has it provided the Nation complete records of such leases
and permits it is required to maintain as trustee.”

• Count 2 states: “The United States, as trustee, has never provided the
Nation a complete and accurate accounting of the revenue the United
States collected or was required to collect, in granting easements and
rights of way and leasing tribal properties. Nor has it provided the Nation
complete records of such transactions which it is required to maintain as
trustee.”

• Count 3 states: “At no time has the United States provided the Nation a
complete and accurate accounting of judgment funds held in trust for its
benefit.”

2008-5043 5
 In the prayer for relief in the Court of Federal Claims complaint, the Nation asks

for monetary damages in this way: “For a determination that the Defendant is liable to

the Nation in damages for injuries and losses caused as a result of Defendant’s

breaches of fiduciary duty.” Court of Federal Claims Complaint, Prayer for Relief ¶ 1.

Given that the counts clearly allege breaches of fiduciary duty related to the “old money”

and the prayer for relief broadly asks for money for breaches of the fiduciary duty, the

Nation has clearly asked for “old money” and therefore overlapping relief.

Contrary to the view of the majority, the Nation’s requests for restitution and

disgorgement (money) in the district court overlap with its request for “damages for

injuries and losses caused as a result of Defendant’s breaches of fiduciary duty”

(money) in the Court of Federal Claims. While it may be true that money damages is a

different technical legal theory than equitable restitution or disgorgement, nonetheless

the claim for money damages can access the same pot of “old money” that the

equitable claims in the district court can access. The Nation can ask for restitution for

the errors revealed in an accounting and damages for errors revealed in an accounting.

While these remedies have different legal names, they are both the same “old money.”

Simply by invoking the word “damages,” the Nation cannot disclaim its allegations that

the government violated its accounting duties. See Dico, 48 F3d at 1203 (“That the

legal theories are different does not mean that the relief is different.”); Johns-Manville,

855 F.2d at 1566 (“In the present case, however, the relief sought from both courts is

money, but under different theories.”). Rather, it is clear that the Nation requests money

damages to make it whole for harms that it suffered, and a loss of “old money” for

breach of accounting duties is one of the harms it repeatedly alleges in the Court of

2008-5043 6
Federal Claims complaint. I am bound by § 1500 and where, as here, overlapping relief

is sought, the action in the Court of Federal Claims must be dismissed. 5

The Nation further reasons that because of the jurisdictional limitations of the two

courts, we must construe the complaints so that they do not ask for relief that is

jurisdictionally precluded. The Nation asks us to cure its pleading defect by construing

the complaints consistent with the court’s jurisdiction which would then avoid

overlapping relief. We should decline to do so. 6 Rather, we must again focus on the

relief requested, and here, the complaints give no indication whatsoever that the claims

are jurisdictionally bounded.

It is the Nation’s responsibility, not ours, to draft two complaints requesting relief

with no overlap. See Dico, 48 F.3d at 1204 (“[I]t is the responsibility of the plaintiff to

5
The Nation argues that the district court complaint seeks only “old money”
for breach of accounting duties. While the district court complaint does ask for an
equitable accounting and alleges breaches of fiduciary duties related to the “old money,”
it also alleges breaches which are related only to “new money.” See, e.g, District Court
Complaint at ¶ 20(f) (“failure to use reasonable skill and care to invest and deposit trust
funds in such a way as to maximize the productivity of trust property”). The
government, however, does not have to establish complete overlap in the relief sought
in the two actions. Since the complaint in the Court of Federal Claims asks for money
for failure to properly keep account of the revenue and collections (“old money”) and
failure to properly manage and invest (“new money”), there is overlap. We need not
reach the issue therefore of whether the district court complaint likewise seeks both.
6
As an initial matter, the jurisdiction of the district court is irrelevant:

The applicability of Sec. 1500 to the first claim of plaintiff, asserted in its
petition herein, is not conditioned upon the question of whether the District
Court had jurisdiction of the claim asserted by the plaintiff therein; and it is
not necessary to the decision, upon the defendant’s plea to the jurisdiction
of this court, for us to discuss the question of whether or not the District
Court does or does not have jurisdiction of the counterclaim filed by
plaintiff therein.

Frantz Equip. Co. v. United States, 98 F. Supp. 579, 580 (Ct. Cl. 1951).

2008-5043 7
allege, clearly and with specificity, that different claims are involved in its two actions.”).

If we are obligated in every case to parse the complaints based not on what the parties

requested, but rather what jurisdiction entitled them to, then § 1500 would never apply.

Had the Nation articulated its requests in its complaints with the subtlety that it has done

on appeal, this might have been a different case. As it stands, I am compelled to

conclude that the Nation’s suits were based on substantially the same operative facts

and that the two complaints included some overlap in the relief requested. Therefore, I

respectfully dissent.

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